There’s still a Voting Rights Act case in federal district court that Forester’s lawyers filed on behalf of absentee voters. I wouldn’t give that too much chance of success, however, especially given today’s denial of certiorari in the NJ state case.
You got it, Dewey - even somebody who thinks every new comic book by some obscure fundamentalist deserves a new thread, but thinks subversions of democracy are boring, can be right sometimes.
I gave them less credit for astute political judgment than they deserve. Oh, you think it was actually a legal decision, not simple fear of stirring up more anti-Republican sentiment by politically intervening again? Maybe so, maybe not - they abandoned the right to such a presumption 12/12/00.
Ah well, if it’s simple fear keeping them in line, at least that works.
:rolleyes:
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Chick tract threads are something of a Pit tradition (and this most recent one was the first I’ve ever started).
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I’m assuming by “subversions of democracy” you’re referring to the Supreme Court’s decision in Bush v. Gore. I never said that discussions of the merits that case were “boring,” only that they were irrelevant to the topic of this thread (except w/r/t precedent for the Toricelli case) and that it’s a moot point at this point in time anyway. I assure you, I took the greatest interest in discussing that case when it was still in the news. I mean really, what next – rearguing the Lopez gun case?
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It is a legally sound decision; this decision is perfectly consistent with the majority rationale in Bush v. Gore.
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Simple fear of what? They’re life tenured, f’rcryinoutloud. Do you mean a groundswell of Democratic support on the ground? I doubt it – outside of New Jersey and its surrounding areas, and outside of major political geeks, this is a non-story. Folks are vaguely aware of some strange goings-on in Joisey, but it’s stuff happening to other people far, far away. All politics is local, after all.
Run along, now; your buddy Ace0Spades is waiting.
So much for gracious victory, eh Elvis?
I could perhaps have been more gracious about admitting I misjudged the SCOTUS 5 political assessment. But the problem is that it is a political judgment rather than a legal one, or at least widely perceived to be one, innit? Who brought that on themselves?
Sorry, Dewey, even though Bush v. Gore is specifically not precedentable, it was claimed by the Forrester campaign to be a precedent they would use. Yes, it’s part of this discussion (and I think you yourself just said so). So you don’t enjoy having it dissected and compared to the subject at hand? Sorry, pal, no retraction of any sort is coming in that direction. I was quite clear, I thought, in how it constitutes subversion of democracy - you don’t have to “assume” that, unless you didn’t or didn’t want to face it anymore. But there are people who still care.
How do you know the decision in re Forrester is “intellectually sound”? They didn’t say a word in rejecting the appeal. If you’re referring to the SCNJ decision, then yes, it seems sound enough - but who said it wasn’t, except for Scylla?
“Simple fear of what”, you ask? Personal embarrassment for one, and for another, of so reinvigorating popular resentment of them for what they did in 2000 that their goal of getting another hard-righty to solidify their majority couldn’t happen. It isn’t NJ that people will think of, it’s Bush and all he’s done against the will of the people. Isn’t that freakin’ obvious to anyone who looks at it without a lawyer’s blinders?
Now maybe someday you might like to consider what your favorite institution has meant to this country, and what future historians will judge of it and its supporters.
Now run along, your intellectual peers Sam, December, and Jodi are waiting.
Elvis:
Where did I say that?
We know what you’re thinking. Just like Bush can peer into the soul of Vlad the Impaler, so we peek into your brain. And what you were just thinking? Disgusting. You perv.
Oh, by the way, these are not the droids you are looking for.
Hi, folks. Checking in from the road.
OK, first of all, to all of you predicting SCOTUS would deny cert., a pat on the back. I was frankly surprised. Not from a legal angle, being NAL, but because there’d been little shyness by SCOTUS on this score in the past (yes, in B v. G). Kudos to those who made the call.
I must come to Elvis’ defense here, in a small way: what does SCOTUS have to fear from making a decision or taking a case in a way that could be seen to be partisan or biased (since, per Dewey, they’re tenured for like)?
Why, of course, the thing SCOTUS could have to fear is any erosion of it’s own authority. If the court is not seen to be a fair arbiter, then the constitutional balance it seeks to provide is undermined. I’d guess this consideration can and does have some weight in the minds of the justices, and may have had more than a little consideration during Bush v. Gore. As I recall, some of the dissenters in that opinion in fact noted this problem (no, I don’t have the cites handy, I’m googling from airport-hotel-land).
I don’t know if the integrity of the court is indeed a force that would tend (emphasis on ‘tend’) keep SCOTUS fingers’ out of partisan politics, but I would guess it merits at least some consideration by the most of the Supremes. Doncha think?
The merits of Bush v. Gore are not part of this discussion. The degree to which Bush v. Gore provides guidelines as to the federal courts intervening in the Toricelli matter is part of this discussion. This is not a difficult distinction to grasp. Rearguing the merits of Bush v. Gore only distracts from the discussion of the merits of the Toricelli matter.**
Actually, I said it was “legally sound,” and it was, because the decision to deny cert was consistent with the majority rationale in Bush v. Gore.**
There is plenty to criticize about the SCNJ opinion. I personally think they decided it incorrectly on the law. They are, however, the ultimate arbiters of NJ law (within federal constitutional contraints, natch), and I can certainly disagree with their decision while simultaneously approving of the federal court’s declining to intervene in this matter.**
I hate to distract you with the facts, but right now the Democrats have a majority in the Senate. A couple of seats changing could alter that balance, and with it committee chairmanships – including the judiciary committee. If the high court was seriously interested in getting another hard-righty and was willing to throw principle out the window to get it, the smart move here would have been to reverse the NJSC – greatly increasing the chances of Republican control of the Senate and thus greatly increasing the chances of conservative judges getting past the judiciary committee.
Not sure I understand this. Supposing a statute says “XYZ crime shall be punishable by a fine of up to $500”. How about a fine of more than $500? Is this only an inference? After all, the statute does not explicitly say that it shall not be punishable by a fine of more than $500 - only that it can be punishable by up to $500. As for greater than $500, one might say - using the logic employed here - that the statute is silent. Leaving it for the courts to decide if the interests of having fines of greater than $500 outweigh those of not having it imposed etc. etc. This is absurd. The English language, as commonly used, plainly means that no fines of greater than $500 are to be imposed - otherwise the term “of up to” has no meaning.
So too here, if the statute says if there is a vacancy before 51 days replacements shall be allowed, it is not merely an inference that after 51 days replacements shall not be allowed. It is part of the statement. Otherwise the qualification “before 51 days” has no meaning.
Beyond this, even if one were to grant that the statute is indeed silent in this instance, is there an authority of the courts in putting people on ballots that is not enshrined in some law or other. IOW, suppose the entire section about 51 days did not exist, I would still think there is no way for a court to order someone onto the ballot. I would think if the law establishes a procedure for getting onto a ballot, and no procedure for replacement, then it is simply impossible to replace anyone - the only way to get on is that established by the law. Or should be, anyway.
So much for the law. As a practical matter, I don’t think all this worrying about the nefarious tricks that future parties will play with ballot substitutions has any merit at all. Generally, the strongest candidate will be the one who wins the nomination. And even if not, the nominee himself will generally think he is the strongest. And even if he doesn’t, he will not want to have all his campaign work go to the benefit of some other guy. Toricelli’s case is unique in that he is an incumbent in a state that leans heavily towards his party (which means that there are other candidates out there that could prevail in the general election) and that his candidacy happened to implode between the primary and the election.
Fact is that everyone agrees that the law allows substitutions before 51 days. So how many times have the parties tried a candidate switcheroo before 51 days? None that I know of. I’m not happy about the decision because I don’t like seeing judges writing their own law (& because I would rather see Forrester win). But as a practical matter, I don’t see any harm in allowing switches as late as is technically possible.
IzzyR:
The two cases are not similar. A criminal law must be construed strictly in favor of the accused. If a fine may be “up to” $500, both the clear language and the principle of construing criminal law strictly favors the interpretation that it may not exceed $500. The law is meant to define the fine that may be levied, after all, and no reasonable interpretation would suggest that the legislature meant for that language to contemplate or authorize a fine over $500.
In the NJ case, the law spells out procedures in the case of 51 day-or-over ballot replacements. By not defining a procedure for the under 51 day period at all, you could certainly assume that the legislature intended for no substitution to exist – after all, it’s obvious that they didn’t intend a free-for all under 51 days, but a strict procedure over 51 days.
But according to the New Jersey Supreme Court, there is an overriding principle in New Jersey: that the two-party system is of great value. If you add that fact to the interpretive mix, you reach a different conclusion: that even under 51 days, the legislature must have intended to permit ballot substitutions for major party candidates. How else can those two principles be reconciled? The legislature is presumed to know the case law when enacting their statutes. And if they wanted to expressly prohibit 50 day or less substitutions, they could have done so.
I may not have made that ruling myself. But I’m not a justice of the NJSC. And it’s not a ruling untenable on its face. It’s the law in New Jersey, interpreted by the body granted the supreme power to do so.
- Rick
IzzyR:
The two cases are not similar. A criminal law must be construed strictly in favor of the accused. If a fine may be “up to” $500, both the clear language and the principle of construing criminal law strictly favors the interpretation that it may not exceed $500. The law is meant to define the fine that may be levied, after all, and no reasonable interpretation would suggest that the legislature meant for that language to contemplate or authorize a fine over $500.
In the NJ case, the law spells out procedures in the case of 51 day-or-over ballot replacements. By not defining a procedure for the under 51 day period at all, you could certainly assume that the legislature intended for no substitution to exist – after all, it’s obvious that they didn’t intend a free-for all under 51 days, but a strict procedure over 51 days.
But according to the New Jersey Supreme Court, there is an overriding principle in New Jersey: that the two-party system is of great value. If you add that fact to the interpretive mix, you reach a different conclusion: that even under 51 days, the legislature must have intended to permit ballot substitutions for major party candidates. How else can those two principles be reconciled? The legislature is presumed to know the case law when enacting their statutes. And if they wanted to expressly prohibit 50 day or less substitutions, they could have done so.
I may not have made that ruling myself. But I’m not a justice of the NJSC. And it’s not a ruling untenable on its face. It’s the law in New Jersey, interpreted by the body granted the supreme power to do so.
- Rick
Are you saying that in my hypothetical case the fact that a fine of greater than $500 cannot be levied rests (in part) on the fact that “criminal law must be construed strictly in favor of the accused”? I would hope not.
Unless I’m misunderstanding the situation here, it is a bit misleading for you to keep referring to “defining a procedure” as if it is a matter of specifying which of many possible procedures are to be followed. As I understand it, there are two possible " procedures" - either allow replacements or not allow replacements. The law said replacements are allowed before 51 days. The court said they are also allowed after 51 days, thus tossing aside the entire 51 day period. I don’t see the slightest difference between this and a case where the law says you can fine less than $500 and the court says you can also fine more than $500 (leaving out the criminal law angle).
Also, you’ve ignored my second point, about the lack of any basis to make the substitution even if is not specifically barred.
I could live with this if there was genuine ambiguity as to the meaning of an existing law, but I don’t think there is, as above.
Somehow my reply got lost earlier
Closer, but still not exact. At least you’re admitting some relevance to the court’s reasoning, such as it was. But you’re still insisting on considering it strictly in terms of jurisprudence, not raw political meddling, a view that puts you in a distinct minority, I’m afraid. Bush provides a precedent for political action by a court, but not, strangely, judicial action - “Our consideration is limited to the present circumstances”, remember?
Not if you consider it in the political terms in which it was delivered, as just explained. Forrester’s campaign manager even said he would use it as a precedent in the suit - that makes complete sense in that there’s a behavioral precedent now for SCOTUS to override the voters and deliver elections to Republicans. Damn straight it’s relevant.
As already noted, you have no freakin’ idea what reasoning the decision was based on, unless you were in the room with them (and maybe not even then). They didn’t say anything about why. Don’t put on airs, pal. Speculation based on the past behavior of the participants is all we can do - and all I did, and apparently more than you did until it was brought up to you.
Or are you simply claiming that an appeals court is on solid legal ground in refusing to hear a case? True enough, but so what?
Regarding your take on the (again) political wisdom of the SCOTUS Five’s decision not to touch the case with a twenty-foot cattle prod, that’s an interesting take you have, and I’m glad you can step out of your bubble and consider it in nonlawyerly terms.
But it doesn’t hold up either, unfortunately. The issue at hand was only whether Lautenberg’s name will be printed on the ballots or will have to be handwritten in (does NJ allow sticker campaigns? Never mind). There was never an issue about Lautenberg being allowed to win. The decision(s) weren’t going to affect the result much anyway, so there was no need for the 5 to spend political (there’s that word again) capital on it, despite what I still believe was a strong urge for them to do so.
Now kindly take your condescension elsewhere. The colors fade quickly under the light.
Scylla, your outrage over the NJSC decision was palpable, although it’s apparently subsided. Nevertheless, that was an unnecessary swipe at you, and I’ll withdraw it.
Everyone: Who will the NJ GOP pick to replace Forrester, now that they have an unquestionable right to do so? Is that moron really the best they could come up with, even against an easily-beatable crook/ass like Torricelli?